TONKINSON v. BYRD et al
Filing
38
OPINION. Signed by Judge Noel L. Hillman on 4/24/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LISA L. TONKINSON,
Plaintiff,
v.
DAVID BYRD, NEC NETWORK, LLC
doing business as
CAPTURERX, LLC, PATIENTCRAFT,
LLC, BECKY SIMEON,
CHRISTOPHER HOTCHKISS, and
HOLLY RUSSO,
Defendants.
APPEARANCES
ALAN H. SCHORR
ALAN H. SCHORR & ASSOCIATES, PC
5 SPLIT ROCK DRIVE
CHERRY HILL, NJ 08003
On behalf of Plaintiff
ELLEN ROSEN ROGOFF
BENJAMIN EVAN GORDON
STRADLEY RONON STEVENS & YOUNG LLP
LIBERTYVIEW
457 HADDONFIELD ROAD - SUITE 100
CHERRY HILL, NJ 08002
KENNETH W. TABER
PILLSBURY WINTHROP SHAW PITTMAN LLP
1540 BROADWAY
NEW YORK, NY 10036
REBECCA CARR RIZZO
PILLSBURY WINTHROP SHAW PITTMAN LLP
1200 17TH STREET NW
WASHINGTON, DC 20036
On behalf of Defendants
1:17-cv-06162-NLH-AMD
OPINION
HILLMAN, District Judge
This case concerns Plaintiff’s claims against her former
employer arising out of her alleged whistleblowing activity
related to compliance audits for a federal prescription drug
program.
Before the Court are Defendants’ motions to dismiss
Plaintiff’s complaint, and if the complaint is not dismissed in
its entirety, to transfer venue to the Western District of
Texas.
For the reasons expressed below, Defendants’ motion to
dismiss will be granted in part and denied in part, and
Defendants’ motion to transfer venue will be denied.
BACKGROUND
According to her complaint, Plaintiff, Lisa L. Tonkinson,
signed her employment contract with Defendant NEC Network, LLC
d/b/a CaptureRx (“CaptureRx”), a company based in Texas, on
December 3, 2015, with her first day of work beginning on
January 4, 2016.
Plaintiff relates that she worked out of her
home office in New Jersey as a consultant on behalf of CaptureRx
for its Health Resources and Services Administration (“HRSA”)
340B prescription drug program.
HRSA is a governmental program that requires prescription
drug manufacturers to provide outpatient medications to eligible
health care organizations at significantly reduced prices.
2
Plaintiff relates that she prepared reports for clients and then
advised clients on how to improve or fix any deficiencies that
existed with relation to the 340B drug program.
Plaintiff
further asserts that independent audits are required by law, and
hospitals are required to show the independent audits to HRSA
340B inspectors upon request.
Plaintiff’s claims arise out of her 340B consulting
services for the New York City Health and Hospitals Corporation
(“NYCHH”).
Plaintiff contends that her NYCHH reports were very
thorough and noted several deficiencies and violations of law
that could and would negatively affect NYCHH.
She alleges those
violations were severe enough to potentially lead to fines and
even disqualification of NYCHH from the 340B program if a
government audit was conducted and found the same
deficiencies.
Plaintiff alleges that NYCHH insisted that she modify the
independent audit to remove references to many of the
deficiencies in her report.
She claims that she refused to
modify her report because her data was correct, and she believed
that changing the report would unlawfully and fraudulently hide
deficiencies, that if left unattended, would break the law.
Plaintiff contends that Defendants, which in addition to
CaptureRX also include PatientCraft, LLC (“PatientCraft”), Holly
Russo, Becky Simeon, David Byrd, and Christopher Hotchkiss,
3
received complaints from NYCHH that Plaintiff would not remove
the deficiencies from her report.
Plaintiff claims that
Defendants then began to exert pressure upon her to change the
report to reflect that NYCHH was complying with the law, but she
refused to do so.
Plaintiff alleges that her employment was
terminated on September 6, 2016 as a result of her refusal to
change the report and violate the law by doing so.
After her termination, Plaintiff claims that unbeknownst to
her Defendants changed her report as requested by NYCHH and
affixed her name to the modified report.
Plaintiff relates that
NYCHH was subsequently audited by the government, which found
NYCHH to be noncompliant in the very ways Plaintiff herself had
found.
Plaintiff further claims that when she secured new
employment with Johns Hopkins University Hospitals, Defendant
Russo provided disparaging information about her to one of their
contractors, who then refused to work with Plaintiff, and she
lost the contract.
Plaintiff claims that Defendants’ actions violate the New
Jersey’s Conscientious Employee Protection Act, N.J.S.A. 34:19-1
et seq. (“CEPA”) (Count One), and constitute fraudulent
misrepresentation (Count Two), appropriation of name for
commercial advantage (Count Three), tortious interference with
employment and prospective economic advantage (Count Four), and
defamation (Count Five).
4
Defendants have moved to dismiss all counts in Plaintiff’s
complaint, arguing that they fail to state any cognizable claims
against them.
Defendants have also moved to change the venue of
Plaintiff’s case to the Western District of Texas.
Plaintiff
has opposed both of Defendants’ motions.
DISCUSSION
A.
Subject matter jurisdiction
Defendants removed this action from New Jersey state court
to this Court pursuant to 28 U.S.C. § 1441.
This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332
because there is complete diversity of citizenship between the
parties and the amount in controversy exceeds $75,000.
Plaintiff if a citizen of New Jersey, and none of the Defendants
are citizens of New Jersey.
B.
(See Docket No. 10-4.)
Standard for Motion to Dismiss
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
5
Under the
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
Bogosian v. Gulf Oil Corp., 562
F.2d 434, 446 (3d Cir. 1977).
However, “[a]lthough the Federal Rules of Civil Procedure
do not require a claimant to set forth an intricately detailed
description of the asserted basis for relief, they do require
that the pleadings give defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail-in-the-coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under
6
Rule 12(b)(6).
First, the factual and legal elements of a claim
should be separated; a district court must accept all of the
complaint's well-pleaded facts as true, but may disregard any
legal conclusions.
S. Ct. at 1950).
Fowler, 578 F.3d at 210 (citing Iqbal, 129
Second, a district court must then determine
whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “‘plausible claim for relief.’”
Id. (quoting Iqbal, 129 S. Ct. at 1950).
A complaint must do
more than allege the plaintiff's entitlement to relief.
Id.;
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (stating that the “Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
This ‘does not impose a probability requirement at the
pleading stage,’ but instead ‘simply calls for enough facts to
raise a reasonable expectation that discovery will reveal
evidence of’ the necessary element”).
A court need not credit
either “bald assertions” or “legal conclusions” in a complaint
when deciding a motion to dismiss.
In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997).
defendant bears the burden of showing that no claim has been
The
presented.
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005)
(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
7
1409 (3d Cir. 1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.
S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,
181 F.3d 410, 426 (3d Cir. 1999).
A court may consider,
however, “an undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on the document.”
Pension Benefit Guar. Corp.
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
If any other matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) motion will be treated as a summary judgment
motion pursuant to Rule 56.
C.
Fed. R. Civ. P. 12(b).
Analysis
1.
Defendants’ Motion to Dismiss
a.
Count One - NJ CEPA
Defendants have moved to dismiss Plaintiff’s CEPA claim,
arguing that she has not pleaded any viable whistleblowing
activity, and her claim is dismissible because she lumps all
Defendants together without specifying which actions of which
Defendant violated CEPA.
The Court disagrees.
The New Jersey Legislature enacted CEPA in 1986 as remedial
legislation entitled to liberal construction, its public policy
8
purpose to protect whistleblowers from retaliation by employers.
Lippman v. Ethicon, Inc., 119 A.3d 215, 224–25 (N.J. 2015)
(citations omitted).
“After nearly two decades of
implementation, it is beyond dispute that the legislative
purpose animating CEPA is, . . . to protect and encourage
employees to report illegal or unethical workplace activities
and to discourage public and private sector employers from
engaging in such conduct.”
Id. (quotations and citations
omitted).
CEPA provides in relevant part:
An employer shall not take any retaliatory action against
an employee because the employee does any of the following
[protected activities]:
a. Discloses, or threatens to disclose to a supervisor or
to a public body an activity, policy or practice of the
employer, or another employer, with whom there is a
business relationship, that the employee reasonably
believes:
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law, ... or, in the case of an
employee who is a licensed or certified health care
professional, reasonably believes constitutes improper
quality of patient care; or
(2) is fraudulent or criminal ...;
b. Provides information to, or testifies before, any public
body conducting an investigation, hearing or inquiry into
any violation of law, or a rule or regulation ...; or
c. Objects to, or refuses to participate in any activity,
policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law, ... or, if the employee
9
is a licensed or certified health care professional,
constitutes improper quality of patient care;
(2) is fraudulent or criminal ...; or
(3) is incompatible with a clear mandate of public
policy concerning the public health, safety or welfare
or protection of the environment.
Id. (quoting N.J.S.A. 34:19–3).
To establish a prima facie CEPA action, a plaintiff must
demonstrate that:
(1) he or she reasonably believed that his or her
employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear mandate
of public policy;
(2) he or she performed a “whistle-blowing” activity
described in N.J.S.A. 34:19–3 [(a), (b), or (c)];
(3) an adverse employment action was taken against him or
her; and
(4) a causal connection exists between the whistle-blowing
activity and the adverse employment action.
Id. at 226 (citation omitted); see also Dzwonar v. McDevitt, 828
A.2d 893, 900 (N.J. 2003) (citations omitted) (setting forth the
four-part standard for a prima facie CEPA claim, and explaining
that a plaintiff who brings a CEPA claim need not show that his
or her employer or another employee actually violated the law or
a clear mandate of public policy, and instead, the plaintiff
simply must show that he or she reasonably believes that to be
the case).
Here, Plaintiff claims that she noted 304B violations in
her internal audit report prepared as an employee of Defendants
for one of their clients, and she objected to her employer’s
10
request that she change her report to remove discrepancies
because she reasonably believed such an action constituted fraud
and would ultimately lead to violations of the law.
claims that she was terminated as a result.
Plaintiff
These allegations
readily satisfy the four elements of a viable CEPA claim.
See,
e.g., Lippman, 119 A.3d at 219 (finding viable a plaintiff’s
CEPA claim for expressing, as a member of an internal review
board, his objections to the other members of the internal
review board that certain of their company’s products were
medically unsafe and that their sale violated various federal
and state laws and regulations, and he was terminated after he
received push back from other members of these boards and
executives whose interest and expertise aligned with the
business priorities of their company).
With regard to Defendants’ argument that Plaintiff’s CEPA
claim fails due to her “group pleading,” the Court does not find
the complaint deficient in a case of this type.
Under CEPA, an
“employer,” includes a “person or group of persons acting
directly or indirectly on behalf of or in the interest of an
employer with the employer's consent.”
N.J.S.A. 34:19-2(a).
CEPA liability may attach to the employer by way of respondeat
superior for the actions of its employees, and to individuals
who perform retaliatory acts with the authorization of their
employers.
Abbamont v. Piscataway Tp. Bd. of Educ., 650 A.2d
11
958, 966 (N.J. 1994); Ivan v. County of Middlesex, 595 F. Supp.
2d 425, 478 (D.N.J. 2009).
Even though Plaintiff will
ultimately have the burden of establishing the specific actions
of each Defendant in order to impose liability on them, at this
point the Court cannot fault Plaintiff for not pleading more
specifically who made the decision to demand the modification of
the reports, who determined to terminate Plaintiff, 1 and who
modified the reports and affixed Plaintiff’s name to them,
because most of that information is within Defendants’
knowledge.
Thus, the Court will not dismiss Plaintiff’s CEPA
claim against any Defendant based on her “group pleading.”
See,
e.g., Southward v. Elizabeth Board of Education, 2017 WL 111924,
at *10 (D.N.J. 2017) (denying the defendants’ motion to dismiss
the plaintiff’s CEPA claim for her “group pleading” because “a
plaintiff cannot be expected to be privy to the inner workings”
of the defendants’ board members and their associates).
b.
Count Two – Fraudulent Misrepresentation
Defendants have moved to dismiss Plaintiff’s fraudulent
1
Plaintiff claims that she believes that Russo, Simeon, Byrd,
and Hotchkiss were all directly involved in the decision to
terminate her. (Docket No. 1-1 at 14.) Plaintiff signed an
employment contract with CaptureRX, but Russo works for
PatientCraft, Simeon and Hotchkiss work for both entities, and
Byrd is the CEO of CaptureRX. (Docket No. 1-1 at 7-8.) The
determination of which, if any, corporate entity or individual
will be held liable for Plaintiff’s CEPA claim may only be made
after the discovery process.
12
misrepresentation claim because Plaintiff alleges that
Defendants intended to mislead others, and not Plaintiff.
Defendants also argue that Plaintiff’s “group pleading” is fatal
to her fraud claim.
Plaintiff argues that in order to maintain
her fraud claim, she does not need to show that she relied upon
the misrepresentation, and instead she can show that Defendants
intended for a third party to rely on that misrepresentation.
The elements of common-law fraud are “‘(1) a material
misrepresentation of a presently existing or past fact; (2)
knowledge or belief by the defendant of its falsity; (3) an
intention that the other person rely on it; (4) reasonable
reliance thereon by the other person; and (5) resulting
damages.’”
Allstate New Jersey Ins. Co. v. Lajara, 117 A.3d
1221, 1231 (N.J. 2015) (quoting Banco Popular N. Am. v. Gandi,
876 A.2d 253 (N.J. 2005)).
Plaintiff alleges that Defendants intentionally put her
name on the altered report with the intention that NYCHH rely
upon that report, which caused her injury because her reputation
and ability to earn a living as a health care auditor was
severely damaged.
In order to overcome the fourth element of
common law fraud, which requires that Plaintiff herself relied
upon the misrepresentation to her detriment, Plaintiff cites to
Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008).
In Bridge, the Supreme Court found that in a RICO action, a
13
RICO plaintiff alleging injury by reason of a pattern of mail
fraud does not have to establish first-party reliance, but a
RICO plaintiff “must establish at least third-party reliance in
order to prove causation.”
Bridge, 553 U.S. at 661 (“[A]
plaintiff asserting a RICO claim predicated on mail fraud need
not show, either as an element of its claim or as a prerequisite
to establishing proximate causation, that it relied on the
defendant's alleged misrepresentations.”).
Plaintiff argues
that such third-party reliance is sufficient to sustain her
common law fraudulent misrepresentation claim.
The Court is not persuaded.
Plaintiff has not cited to any
case that has applied Bridge outside of RICO in a common law
fraud context.
Indeed, the holding in Bridge was specific to
RICO, as the Supreme Court observed, “[W]e are not at liberty to
rewrite RICO to reflect [our] views of good policy. . . .
RICO's text provides no basis for imposing a first-party
reliance requirement.”
Id. at 660 (citations omitted).
The
Supreme Court only considered the third-party reliance element
in RICO, and it did not opine on whether the same element could
apply to common law fraud, which traditionally requires firstparty reliance.
Without any indication that the Bridge case has
ever been extended to the common law fraud context, the Court
does not find compelling Plaintiff’s attempt to do so here.
Thus, because Plaintiff has not alleged that she relied to
14
her detriment on Defendants’ placement of her name on the
altered report, Plaintiff’s fraudulent misrepresentation claim
must be dismissed.
c.
Count Three – Appropriation of Name for
Commercial Advantage
Plaintiff’s contention that Defendants fraudulently put her
name on the altered report sent to NYCHH is more appropriately
asserted in support of her cause of action for appropriation of
her name for commercial advantage.
Defendants object to this
claim, arguing that it lacks specificity and is frivolous.
The common law tort of commercial appropriation of a
person’s name or likeness is one of four torts set forth in
Restatement (Second) of Torts § 652 (1977).
Castro v. NYT
Television, 851 A.2d 88, 97 (N.J. Super. Ct. App. Div. 2004)
(citing Rumbauskas v. Cantor, 649 A.2d 853, 856-57 (N.J. 1994)).
The others are invasion of privacy by an unreasonable intrusion
upon the seclusion of another, § 652B, giving unreasonable
publicity to another’s private life, § 652D, and publicity that
unreasonably places a person in a false light in the public eye,
§ 652E.
Id.
“These are four distinct torts with different
elements that have almost nothing in common except that each
represents an interference with the right of the plaintiff to be
let alone.”
Id. (quotations and citations omitted).
Specifically, the tort of commercial appropriation of a
15
person’s name or likeness “is recognition that a person has an
interest in their name or likeness ‘in the nature of a property
right.’”
Id. at 97 (quoting Restatement (Second) of Torts, §
652C comment a).
“Its most common form consists of the
appropriation and use of the plaintiff’s name or likeness to
advertise the defendant’s business or product,” and “the use of
a person’s name or likeness for trade purposes is an essential
element of the tort.”
Id. (quotations and some citations
omitted) (citing Tellado v. Time-Life Books, Inc., 643 F. Supp.
904, 909-10 (D.N.J. 1986) (“[U]nder New Jersey common law,
defendant would be liable for the tort of misappropriation of
likeness only if defendant’s use of plaintiff's likeness was for
a predominantly commercial purpose, i.e., if defendant was
seeking to capitalize on defendant’s likeness for purposes other
than the dissemination of news or information.”)).
Plaintiff alleges in her complaint that Defendants affixed
her name to a report she did not author in order to use her good
reputation to gain commercial advantage with, and to profit
from, its contract with NYCHH.
Plaintiff claims that this
misappropriation was made for strictly commercial reasons,
without any redeeming public interest, news or historical value,
and it violated her right to be “let alone.”
This claim may proceed.
Plaintiff has sufficiently alleged
facts that support the elements of a commercial appropriation
16
claim.
Even though Plaintiff alleges this claim against
Defendants collectively, at this stage in the case, just like
with her CEPA claim, the issue of which Defendants took part in
putting Plaintiff’s name on the altered report sent to their
customer is not within Plaintiff’s knowledge to plead.
Plaintiff is permitted to flesh out this claim through the
discovery process.
d.
Count Four – Tortious Interference with
Employment and Prospective Advantage
Plaintiff alleges that Defendant Russo intentionally
interfered with the new job she secured after her termination
with Defendants by speaking with her new employer, who then
terminated her contract because of what Defendant Russo said
about her.
Defendants have moved to dismiss this claim, arguing
that Plaintiff’s lack of explanation as to what information
Defendant Russo provided to her new employer is fatal to her
claim, and it otherwise fails to plead any involvement by the
other Defendants.
Plaintiff responds that she is only aware that Defendant
Russo spoke to her new employer, and she does not object to
dismissing this claim against the other Defendants, unless
during discovery it is uncovered that other Defendants were
involved as well.
“The Supreme Court of New Jersey has identified the four
17
elements of a prima facie case for [a claim of tortious
interference with prospective economic advantage]: (1) a
reasonable expectation of economic advantage to plaintiff, (2)
interference done intentionally and with ‘malice,’ (3) causal
connection between the interference and the loss of prospective
gain, and (4) actual damages.
Varrallo v. Hammond Inc., 94 F.3d
842, 848 (3d Cir. 1996) (citing Printing Mart–Morristown v.
Sharp Elecs. Corp., 563 A.2d 31, 37 (N.J. 1989)) (explaining
that being an “at will” employee does not affect that employee’s
ability to bring such a claim)).
Plaintiff has adequately pleaded her claim of tortious
interference with prospective economic advantage against
Defendant Russo, and again, Plaintiff’s lack of knowledge about
what exactly Russo said to her new employer does not cause her
claim to fail at this motion to dismiss stage.
The count will
be dismissed against the other Defendants, without prejudice to
Plaintiff’s right to seek amendment should discovery reveal
information regarding those Defendants’ involvement with this
claim.
e. Count Five – Defamation/Commercial
Disparagement
Plaintiff claims that she was defamed and suffered
commercial disparagement when Defendants put her name on the
altered report and when Russo spoke to her new employer.
18
This
claim will be dismissed without prejudice.
A claim for
defamation is different from a claim for commercial
disparagement, yet Plaintiff pleads them together without
differentiation.
See Patel v. Soriano, 848 A.2d 803, 834 (N.J.
Super. Ct. App. Div. 2004) (explaining how “[c]ertain
differences between defamation and trade libel are
significant”); id. (citations omitted) (explaining that trade
libel identifies the tort addressing aspersions cast upon one's
business operation, and is it also known as injurious falsehood,
disparagement of property, or commercial disparagement, but the
tort is broader in scope than any of those terms would indicate,
and it is similar to the tort of intentional interference with
one's economic relations, rather than a branch of the general
harm to reputation involved in libel and slander); id. at 835
(citations omitted) (“[I]f the statement charges plaintiff with
personal misconduct, or imputes to plaintiff reprehensible
personal characteristics, it is regarded as libel or slander.
If, however, the aspersion reflects only on the quality of
plaintiff's product, or on the character of plaintiff's business
as such, it is disparagement.”).
Thus, the Court finds that Plaintiff’s count for
defamation/commercial disparagement fails to state a viable
claim as currently pled and will be dismissed.
As with the
claim for tortious interference with prospective economic
19
advantage, this count will be dismissed without prejudice to
Plaintiff’s right to seek amendment should discovery reveal
information sufficient to assert either or both of these claims.
The Plaintiff should note, however, that if leave to re-plead
such claims is asserted in the future, such claims should not be
a simple amalgam of her other claims but pled separately as the
elements are different.
2.
Defendants’ Motion to Transfer
Having determined as currently pled that Plaintiff’s CEPA,
appropriation of her name for commercial advantage tortious, and
interference with prospective economic advantage claims may
proceed, the Court must address Defendants’ contention that the
proper venue for this action is in the Western District of
Texas.
In federal court, venue questions are governed by 28 U.S.C.
§ 1404(a) or 28 U.S.C. § 1406.
Section 1404(a) provides for the
transfer of a case where both the original and the requested
venue are proper, while § 1406 applies where the original venue
is improper and provides for either transfer or dismissal of the
case.
See Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d
Cir. 1995) (explaining that although either statute could
theoretically provide a basis for the transfer of a case, only §
1406 can support a dismissal).
Defendants have moved for
transfer pursuant to § 1404(a).
20
The “analysis of whether transfer is appropriate does not
necessarily require extensive investigation,” Van Cauwenberghe
v. Biard, 486 U.S. 517, 529 (1988), and “[t]he decision to
transfer is in the court’s discretion, but a transfer is not to
be liberally granted.”
In re: Howmedica Osteonics Corp, 867
F.3d 390, 401 (3d Cir. 2017) (citing Shutte v. Armco Steel
Corp., 431 F.2d 22, 25 (3d Cir. 1970) (quotations and citation
omitted)).
The U.S. Supreme Court has provided several factors for a
district court to consider when evaluating a § 1404(a) motion.
Factors relating to the parties’ private interests include: (1)
relative ease of access to sources of proof; (2) availability of
compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; (3) possibility of
view of premises, if view would be appropriate to the action;
and (4) all other practical problems that make trial of a case
easy, expeditious and inexpensive.
Atlantic Marine Const. Co.,
Inc. v. U.S. Dist. Court for Western Dist. of Texas, 571 U.S.
49, 62 n.6 (2013) (quoting Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241, n.6 (1981)) (internal quotation marks omitted).
Public-interest factors may include: (1) the administrative
difficulties flowing from court congestion; (2) the local
interest in having localized controversies decided at home; and
(3) the interest in having the trial of a diversity case in a
21
forum that is at home with the law.
Id.
The Court must also
give some weight to the plaintiff’s choice of forum.
Id.
(citation omitted).
The Court has considered the parties’ arguments as to the
proper venue of this matter, and finds that the case should
remain here.
Plaintiff is a New Jersey citizen who originally
filed her case in New Jersey state court asserting claims for
violations of a New Jersey statute and New Jersey common law,
arising out of her employment from her home office in New
Jersey.
Even though Defendants are located in Texas, the Court is
not persuaded that the private and public factors weigh
significantly enough in Defendants’ favor to warrant the
transfer of this case to the Western District of Texas.
Accordingly, the Court determines that in its discretion the
matter will proceed here.
CONCLUSION
For the reasons expressed above, the following of
Plaintiff’s claims may proceed: New Jersey’s Conscientious
Employee Protection Act, N.J.S.A. 34:19-1 et seq. (Count One),
appropriation of name for commercial advantage (Count Three),
and tortious interference with employment and prospective
economic advantage (Count Four).
Plaintiff’s claims for
fraudulent misrepresentation (Count Two) and
22
defamation/commercial disparagement (Count Five) will be
dismissed without prejudice.
The venue of this case will remain
in this Court.
An appropriate Order will be entered.
Date: April 24, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?